Last month, the U.S. Supreme Court in a widely noted decision enjoined while appeals are pending New York's 10 and 25 person occupancy limits on houses of worship in red and orange zones of high COVID infections. (See prior posting.) Now the U.S. 2nd Circuit Court of Appeals has come down with a decision in that pending appeal. In Agudath Israel of America v. Cuomo, (2nd Cir., Dec. 28, 2020), (in a decision that also covers the suit brought by the Catholic Diocese of Brooklyn), the court held that these limits imposed on houses of worship are subject to strict scrutiny, and that they are not narrowly tailored to stem the spread of COVID-19. It remanded the cases to the district court, instructing it to issue a preliminary injunction. It also ordered the district court to determine in the first instance whether alternative limits in the governor's Order of 25% and 33% of capacity can satisfy strict scrutiny. In reaching its conclusion, the court said in part:
[T]he [Governor's] Order does not impose generally applicable public-health guidelines, like requiring masks and distancing or limiting capacity by time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. That lack of general applicability is also subject to strict scrutiny.
Further, although the Governor asserts that “all” activities not restricted by the Order present lesser risks of COVID-19 transmission than religious worship, he has never claimed that the unrestricted category of “essential” activities was created based on transmission risk. Instead, “[t]he only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.”
Reuters reports on the decision.
